Dilip B Bhosale, J. - (1.) The question referred to this Bench is, whether the limitation for filing an appeal at the instance of the victim or the first informant is 60 days from the date of acquittal as laid down under Section 378 (5) of the Code of Criminal Procedure, 1973 (for short, 'CrPC') or 90 days as reported by the Stamp Reporter pursuant to the judgment of a coordinate Bench of this Court in Nanhey Singh @ Dinesh Singh Vs. State of U.P. & Ors., Criminal Misc. Application Defective U/S 372 CrPC (Leave to Appeal) No. 83 of 2013, decided on 22.07.2013.
(2.) This question has been formulated and referred by a Division Bench, while dealing with Criminal Misc. Application U/S 372 Cr.P.C. (Leave to Appeal) No. 351 of 2017. The Criminal Misc Application has been instituted on behalf of the complainant against the judgment and order dated 01.08.2017 rendered by Additional Sessions Judge, Court No.1, Banda, whereby the respondents-accused were acquitted of the charges punishable under Sections 364/376 of Indian Penal Code (for short, 'IPC') read with Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act') in Sessions Trial No. 120 of 2014 arising from Special Criminal Case No. 67 of 2014. The victim in the first case is one Km 'X' and the first informant is one Mast Ram Tiwari, son of Bachchhi Ram Tiwari, her grandfather. The alleged incident of kidnapping and rape occurred in the intervening night of 18th and 19th May 2014. The FIR was lodged by the petitioner pursuant to which a crime bearing Crime No. 120 of 2014 came to be registered at Police Station Mataundh, District Banda. The accused persons were tried before the Additional Sessions Judge, Court No.1, Banda, who, vide judgment and order dated 01.08.2017, acquitted them all of the charges punishable under Sections 364, 376 of IPC read with Sections 3 and 4 of POCSO Act. It is against this judgment and order the petitioner filed an application seeking leave of this Court to file appeal against the order of acquittal under Section 372 read with Section 378 (5) of CrPC. Since the appeal was filed after 60 days from the date of the judgment of acquittal, the above question has been framed and referred by the Division Bench vide order dated 03.11.2017. The Division Bench, after referring to the judgment of another Division Bench of this Court in Nanhey Singh , expressed its reservation about view taken therein and formulated the question by making the following observations in the order: "Proviso to section 372 Cr.P.C. has been added by the Legislature through the Amending Act No.5 of 2009. Proviso to section 372 Cr.P.C. does not have the retrospective effect. There is no period of limitation prescribed for the filing of an appeal by a victim under the proviso to Section 372. Thus it is well established that a reasonable period would have to be inferred from the statutory provisions. If no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What shall be the reasonable period would depend upon the nature of the statute, rights and liabilities and other relevant factors. In the absence of any period of limitation it is settled that every authority is to exercise the power within a reasonable period. What would be reasonable period would depend upon the facts of each case. Thus, from a reading of the above said legal position it is abundantly clear that the proviso to Section 372 Cr.P.C. must be read along with its main enactment i.e. Section 372 itself together with sub-section (3) of Section 378 Cr.P.C. otherwise the substantive provision of Section 372 Cr.P.C. will be rendered nugatory, as it clearly states that no appeal shall lie from any judgment or order of a criminal court except as provided by Cr.P.C. Sub-section (3) to section 378 Cr.P.C. provides for preferring an appeal to the High Court against the order of acquittal and it is necessary to obtain its leave. It is well established that the proviso to section 372 Cr.P.C. must be limited to the subject matter of section 378 Cr.P.C. During the course of arguments, Sri Syed Ali Murtaza, learned AGA has also cited a number of judgments of other Hon'ble High Court and the Apex Court with regard to computation of limitation in filing the appeal against acquittal. Learned AGA stressed that Legislative body has not paid heed towards the Amending Act No.5 of 2009 by virtue of which period of limitation has not been prescribed in consonance with Article 114 (a) Limitation Act which was being followed under section 417 Cr.P.C.of Old Act 1898 and has now been re-enacted as Section 378 Cr.P.C. For the proper exposition of legal stratagem, the judgments relied by the learned counsel for the appellant and AGA are delineated as under : 1. Kareemul Hajazi Vs. State of NCT of Delhi & others (Crl. Appeal No. 740 of 2010) decided on 7.1.2011. 2. Lalu Prasad Yadav & State of Bihar & another (Criminal Appeal No. 662 of 2010) decided on 1st April 2010. 3. M/s Tata Steel Ltd. Vs. Atma Tube Products & others (FB) CRM 790 of 2010 decided on 18th March 2013. 4. State (Delhi Administration) Versus Dharampal, 2001 10 SCC 372. In the aforesaid judgments, the issue with regard to computation of limitation in the appeal filed against the acquittal passed by any court other than a High Court by the Central Government, State and the victim has been dealt with in extenso which is totally not in consonance with section 378 (5) Cr.P.C. Thus the period of limitation enshrined in section 378 (5) Cr.P.C. runs counter to the ratio of coordinate Bench of this Court in the matter of Nanhey Singh @ Dinesh Singh decided on 22.7.2013."
(3.) The Division Bench, while making reference, also connected another appeal filed by the Government, bearing Government Appeal No. 6071 of 2017 (State of U.P. Vs. Keshav Savita & Anr.), observing that quite similar and debatable question is raised in the said appeal also. It is in this backdrop, a larger Bench has been constituted for considering the aforementioned question quoted in the first paragraph of this judgment.;